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Miss Yesterday’s Webinar Examining New Bankruptcy Laws? Replay Available!

ABI Bankruptcy Brief

August 29, 2019

 
ABI Bankruptcy Brief
 
 
NEWS AND ANALYSIS

Miss Yesterday’s Webinar Examining New Bankruptcy Laws to Help Distressed Small Businesses, Disabled Veterans and Family Farmers? Replay Available!

Experts participated on an ABI Media Webinar yesterday that provided an overview of the recently enacted “Small Business Reorganization Act of 2019” (H.R. 3311), “HAVEN Act” (H.R. 2938) and “Family Farmer Relief Act of 2019” (H.R. 2336). President Donald J. Trump on Aug. 23 signed the bipartisan bills into law. The webinar features:

Robert J. Keach of Bernstein, Shur, Sawyer & Nelson (Portland, Maine) discussing SBRA. Keach testified on ABI’s behalf in support of H.R. 3311, H.R. 2938 and H.R. 2336 before the House Judiciary Committee Subcommittee on Antitrust, Commercial and Administrative Law on June 25.

Kristina Stanger of Nyemaster Goode, P.C. (Des Moines, Iowa) and Jessica Hopton Youngberg of the Veterans Legal Services Clinic at the New England Center & Home for Veterans in Boston, both members of ABI's Veterans' Affairs Task Force, discussing the HAVEN Act.

Joseph A. Peiffer of Ag & Business Legal Strategies (Cedar Rapids, Iowa) and Donald L. Swanson of Koley Jessen (Omaha, Neb.), both with more than 30 years of experience in bankruptcy and agricultural law, discussing the Family Farmer Relief Act.

ABI Executive Director Samuel J. Gerdano moderated the webinar. To watch the replay, please click here.
 

Commentary: Private Equity's Abuse of Limited Liability*

One of the central features of the Stop Wall Street Looting Act that was introduced by Sen. Elizabeth Warren and a number of co-sponsors is a targeted rollback of limited liability, according to a CreditSlips blog post by Prof. Adam Levitin of Georgetown University Law. This provision, more than any other, has gotten some commentators’ hackles up, even those who are willing to admit that there are real problems in the private-equity industry and who welcome some of the other reforms in the bill. The idea that limited liability is a sine qua non of the modern economy is practically Gospel to most business commentators. These commentators assume that without limited liability, no one will ever assume risks, such that any curtailment of limited liability is a death sentence for the private-equity industry, but they're wrong, according to Levitin. Limited liability is a substantial, regressive cross-subsidy to capital at the expense of tort creditors, tax authorities and small businesses. Limited liability is a relic of the underdeveloped financial markets of the Gilded Age and operates as an implicit form of leverage provided by law, according to Levitin. But it’s hardly either economically efficient or necessary for modern business activity.



*The views expressed in this commentary are from the author/publication cited, are meant for informative purposes only, and are not an official position of ABI.

Latest ABI Podcast Features Experts Discussing Consumer Commission's Recommendations on Discharge Violations, Attorney Competency and Lawyer Misconduct

ABI's latest podcast features members of ABI's Commission on Consumer Bankruptcy discussing recommendations from the Final Report looking at remedies for discharge violations, attorney competency and remedying lawyer misconduct. Commissioner Rudy Cerone of McGlinchey Stafford, PLLC, (New Orleans) moderates the discussion with fellow Commissioners Tara Twomey of the National Consumer Law Center (San Jose, Calif.) and Richardo Kilpatrick of Kilpatrick & Associates, P.C. (Auburn Hills, Mich.), and Karen Cordry of the National Association of Attorneys General (Washington, D.C.), who was a member of the Chapter 7 Advisory Committee.

White Paper: Retailers Face Tough Decisions as China Tariff Pressures Mount

To date, many consumer goods such as toys, shoes and electronics have been strategically exempted from the tariffs, which has to a great extent spared U.S. shoppers from feeling the pain at the point of sale. But based on the Trump administration’s position, if the most recent round of talks on the issue between President Trump and Chinese leader Xi Jinping do not end well, the pain could become very real for both U.S. consumers and the businesses they frequent sooner rather than later, according to a research paper by Hilco Global. New tariffs could impact 100 percent of the toys and sports equipment imported from China to the United States, as well as 93 percent of the footwear and 91 percent of textiles and clothing, according to an analysis by the Peterson Institute for International Economics. Moving ahead, many retailers may experience shortages of supply as they seek non-Chinese vendors and ramp up those new and intricate relationships. Additionally, because most are not in a position to raise pricing enough to nullify the impact of the increased tariffs on their businesses, it can also be expected that we will see continued compression of retail gross margins.

Banks Fire Up Their Mortgage Machines for a Refinancing Boom

With rates for home loans sinking to their lowest levels since late 2016, Wells Fargo & Co., the biggest mortgage lender in the U.S., has boosted staffing for the business by about 10 percent this year and plans to keep hiring. Bank of America Corp. is hiring in areas including sales, processing and underwriting. The mortgage industry has added almost 5,000 employees since March, a 1.5 percent gain, according to the Bureau of Labor Statistics. The volume of applications for refinancing mortgages has more than tripled since December, according to a barometer from the Mortgage Bankers Association.

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BLOG EXCHANGE

New on ABI’s Bankruptcy Blog Exchange: Small Business Reorganization Act Signed into Law — A New Frontier for Small Business Bankruptcies

President Trump on Aug. 23 signed the Small Business Reorganization Act (SBRA) into law. The SBRA is scheduled to take effect on February 22, 2020, and offers small businesses with aggregate liabilities that do not exceed $2,725,625 the opportunity to resolve their outstanding debts through a condensed and price conscious chapter 11 bankruptcy proceeding, according to a recent blog post. This new proceeding is to be governed under subchapter V to chapter 11 of the Bankruptcy Code.

To read more on this blog and all others on the ABI Blog Exchange, please click here.

 
© 2019 American Bankruptcy Institute
All Rights Reserved.
66 Canal Center Plaza, Suite 600
Alexandria, VA 22314
 

Bankruptcy Bills Await President's Signature

ABI Bankruptcy Brief

August 22, 2019

 
ABI Bankruptcy Brief
 
 
NEWS AND ANALYSIS

Bankruptcy Bills Await President's Signature

A trio of bankruptcy bills are sitting on President Trump’s desk awaiting his signature. The three bankruptcy bills are the “Small Business Reorganization Act of 2019” (H.R. 3311), the “Honoring American Veterans in Extreme Need Act of 2019” or the “HAVEN Act” (H.R. 2938), and the “Family Farmer Relief Act of 2019” (H.R. 2336).

JPMorgan: Tariffs Could Cost U.S. Families Up to $1,000 a Year

More than a year into the U.S./China trade war, American consumers are about to find themselves squarely in the crosshairs for the first time, with households estimated to face up to $1,000 in additional costs each year from tariffs, according to research from JPMorgan Chase, the Washington Post reported. Consumers, whose spending fuels about 70 percent of the U.S. economy, have been largely shielded from previous rounds of tariffs, which have left businesses reeling and upended global supply chains. But that’s about to change with the 10 percent levies on roughly $300 billion in Chinese imports, about a third of which will take effect Sept. 1. Those tariffs will primarily target consumer goods. Amid growing concern that the tariffs could damage the economy, Trump abruptly announced he would delay tariffs on certain popular products such as laptops, footwear and video games — about two-thirds of the impacted items — until mid-December. But that’s not enough to eliminate the added burden for consumers. JPMorgan researchers calculated that after the 10 percent levies go into effect, American families will be facing about $1,000 in additional costs from all tariffs on Chinese goods annually. If the upcoming tariffs are raised to 25 percent, as Trump has warned, consumers’ costs could go as high as $1,500 a year, researchers estimated. “The impact from reduced spending could be immediate for discretionary goods and services, since tariffs are regressive,” JPMorgan researchers noted. “Unlike the agriculture sector, which is receiving subsidies/aid to offset the impact of China’s retaliatory actions, there is no simple way to compensate consumers.”



Law Firm Bills in Big Bankruptcy Cases Growing Rapidly

There was no summer slowdown for law firms advising on large corporate bankruptcies: The season has brought a bonanza of law firm fee applications and approvals, Law.com reported. Several large firms stand to gain up to tens of millions of dollars from some of the most active chapter 11 bankruptcies this summer, including Sears Holding Corp. and PG&E Corp. In the Sears case, Bankruptcy Judge Robert Drain on June 28 approved fee requests for 16 advisors — including six law firms — that totaled about $130 million in all for work mostly from mid-October through February. Across the country, PG&E has already paid more than $84 million to four firms in the months leading to its January 2019 bankruptcy.

Wells Fargo Pays $6.5 Million to Navajo Nation over 'Predatory' Practices

Wells Fargo & Co. will pay the Navajo Nation $6.5 million to settle a lawsuit over “predatory and unlawful practices” by the bank, the Native American tribe said today, Reuters reported. The Navajo Nation sued Wells Fargo in federal and tribal courts in 2017, alleging that the San Francisco-based bank had opened unauthorized accounts for vulnerable tribe members as part of the potentially millions of fake accounts opened by bank employees nationwide. The settlement “puts other companies on notice that harmful business practices against the Navajo people will not be tolerated,” Navajo Nation President Jonathan Nez said in the statement, which referred to Wells Fargo’s “long campaign of predatory and unlawful practices.” The settlement with the Navajo Nation followed a $575 million deal in 2018 with U.S. states over claims that Wells Fargo opened phony customer accounts and improperly referred and charged customers for financial products.

Hedge Funds Have Already Bled $55.9 Billion This Year

Hedge funds have already bled 50 percent more money this year than in all of 2018, as the industry struggles to win back investors fed up with high fees and poor performance, Bloomberg News reported. Investors yanked $8.4 billion in July, bringing net outflows this year to $55.9 billion, according to an eVestment report on Thursday. That’s up from $37.2 billion for all of last year. Investors’ frustration with hedge funds continues to mount, driving down management and performance fees to well below the “two and 20” fee model once considered standard, according to Eurekahedge. More hedge funds have shut than started in each of the last three years, and those that do launch are far smaller than they were before the financial crisis. The pain for hedge funds isn’t spread evenly, with 37 percent of funds posting net inflows this year. So-called event-driven funds have fared the best, with inflows of $10.3 billion through July, eVestment data show. These funds try to cash in when events such as mergers, takeovers and bankruptcies lead to a temporary mispricing of a company’s shares.

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BLOG EXCHANGE

New on ABI’s Bankruptcy Blog Exchange: Restaurant Business Is Giving Lenders Indigestion

As a growing number of restaurant chains are going bankrupt, loan charge-offs are rising, according to a recent blog post.

To read more on this blog and all others on the ABI Blog Exchange, please click here.

 
© 2019 American Bankruptcy Institute
All Rights Reserved.
66 Canal Center Plaza, Suite 600
Alexandria, VA 22314
 

Student Loan Balances and Repayment Behavior Worse for Private Colleges

ABI Bankruptcy Brief

August 8, 2019

 
ABI Bankruptcy Brief
 
 
NEWS AND ANALYSIS

Student Loan Balances and Repayment Behavior Worse for Private Colleges

A study recently released by the New York Fed found that during the 2000-10 period, student loan balances at college exit increased and repayment behavior deteriorated for those pursuing undergraduate certificates and associate's and post-bachelor’s degrees at private institutions, relative to those pursuing such degrees at public institutions. Declines in repayment behavior at private institutions were sharpest for associate’s degrees and undergraduate certificates, according to the study by Meta Brown, an associate professor of economics at Stony Brook University, Basit Zafar, an associate professor of economics at Arizona State University, Rajashri Chakrabarti, a senior economist at the Federal Reserve Bank of New York and Wilbert van der Klaauw a senior vice president at the Federal Reserve Bank of New York. "Those [students] holding loans that are delinquent or in default may experience immediate financial hardship; down the line, they may see a reduction in their credit scores that makes it difficult for them to obtain home or car loans or even to find a job (since many jobs now make hiring conditional on a credit report check)," the researchers write. "Lack of credit access could further adversely affect consumption, which in turn could act as a drag on GDP growth."



The issue of student loan debt and bankruptcy is the first problem addressed in the Final Report of the ABI Commission on Consumer Bankruptcy. Listen to this podcast to find out more and click here to download your copy of the Final Report.

Analysis: Farmers Struggle as Trade War Intensifies

Hundreds of other farmers around the country, grappling with rising debt, dismal commodity prices and the fallout of the Trump administration’s trade wars, are facing the same fate, the Washington Post reported. Net farm income has dropped by nearly half in the past five years, from $123 billion to $63 billion. Dairy producers were already struggling with low prices due to oversupply and America's new thirst for alternatives such as soy milk when the Trump administration’s trade wars with Mexico, Canada and China hit, sending exports plunging and exacerbating gluts of various commodities. Dairy farmers have lost at least $2.3 billion in revenue since the trade wars began, according to the National Milk Producers Federation.



The U.S. Senate on Aug. 1 passed a bill that will make it easier for more farmers with larger amounts of debt to file for bankruptcy protection, Reuters reported. The bipartisan bill — H.R. 2336, the "Family Farmer Relief Act of 2019" — raises the ceiling on how much debt producers who file for chapter 12 bankruptcy can have, to $10 million from the previous $4 million. The bill awaits the President's signature into law.

Inflated Bond Ratings, a Catalyst of the Financial Crisis, Are Back

Inflated bond ratings were one cause of the financial crisis. A decade later, there is evidence they persist. In the hottest parts of the booming bond market, S&P and its competitors are giving increasingly optimistic ratings as they fight for market share, the Wall Street Journal reported. All six main ratings firms have since 2012 changed some criteria for judging the riskiness of bonds in ways that were followed by jumps in market share, at least temporarily, a Wall Street Journal examination found. The problem is particularly acute in the fast-growing market for “structured” debt — securities using pools of loans such as commercial and residential mortgages, student loans and other borrowings. The deals are carved into different slices, or “tranches,” each with varying risks and returns, which means rating firms are crucial to their creation. The Journal analyzed about 30,000 ratings within a $3 trillion database of structured securities issued between 2008 and 2019. The data, compiled by deal-tracker Finsight.com, allowed a direct comparison of grades issued by six firms: majors S&P, Moody’s Corp. and Fitch Ratings, and three smaller firms that have challenged them since the financial crisis, DBRS Inc., Kroll Bond Rating Agency Inc. and Morningstar Inc. The Journal’s analysis suggests a key regulatory remedy to improve rating quality — promoting competition — has backfired. The challengers tended to rate bonds higher than the major firms. Across most structured-finance segments, DBRS, Kroll and Morningstar were more likely to give higher grades than Moody’s, S&P and Fitch on the same bonds. Sometimes one firm called a security junk and another gave a triple-A rating deeming it supersafe.

Mall Landlords Weigh Becoming Lenders to Blunt Retail Apocalypse

Mall landlords accustomed to offering rent reductions to ailing retailers are mulling a new strategy to forestall the industry’s collapse: positioning themselves as lenders to tenants struggling to stay afloat, Bloomberg News reported. Boutique bank PJ Solomon has organized discussions with several mall owners about pursuing such a strategy with troubled retailer Forever 21 Inc. in what could serve as a model for future transactions within the sector. The talks have centered on converting rent and other liabilities into secured debt that could give distressed companies some breathing room to stay out of court, according to sources. If a retailer later goes bust, the arrangement could give landlords a stronger say in the restructuring process because lenders get higher priority in a bankruptcy. The landlords potentially could use their preferred status to bid for assets, swapping their unpaid claims for ownership. For mall operators dealing with wave after wave of closings, the situation is critical. More than 7,500 U.S. retail storefronts have shuttered this year alone, according to Coresight Research, dwarfing openings as chains such as Payless Inc. and Gymboree Corp. ceased operations.



Occupancy issues are at the heart of many significant retail cases, as detailed in the ABI publication Retail and Office Bankruptcy: Landlord/Tenant Rights, available at the ABI Store.

Zombie Debt: How Collectors Trick Consumers into Reviving Dead Debts

Debt collectors lose the right in many states to sue consumers after three or more years. But there’s a loophole: If the consumer makes a payment, even against his or her own will, that can be used to try to revive the life of the debt, the Washington Post reported. The practice could prove increasingly profitable as the country’s consumer debt reaches record levels — more than $4 trillion this year — and the industry is able to bring in “tens of billions of dollars” from debt past the statute of limitations every year, according to a report by the Receivables Management Association International. The efforts to collect on old debts often focus on getting consumers to reset the statute of limitations through a variety of means, including sending them credit cards that let them pay off their old debts or by allowing them to make a small payment to halt debt collection calls. The efforts have contributed to the flood of debt-collection lawsuits clogging courts across the country, consumer advocates say. In New York City, the number of debt-collection lawsuits surpassed 100,000 last year, compared with 47,000 in 2016, according to data from the New Economy Project, an advocacy group. Texas and Washington state passed legislation this year making it more difficult to revive debt past its statute of limitations, but the industry successfully fought efforts in other states, including New York. And consumer advocates worry that new rules proposed by the Consumer Financial Protection Bureau — the first major update to the Fair Debt Collection Practices Act in more than 40 years — could further bolster the industry.

America’s Pension Funds Fell Short in 2019

Public pension plans fell short of their projected returns this year, adding to the burden on governments struggling to fund promised benefits to retired workers, the Wall Street Journal reported. Public plans with more than $1 billion in assets earned a median return of 6.79 percent for the year ended June 30, the lowest since 2016, according to Wilshire Trust Universe Comparison Service data released Tuesday. Public pension plans project a median long-term return of 7.25 percent, according to data collected by Wilshire Associates in 2018. Overall, a decade-long bull market in stocks has been good for pensions. Large public plans had five years of double-digit returns and a 10-year annualized return of 9.7 percent for the year ended June 30, according to Wilshire. But those returns still haven’t brought pension funding levels close to what is needed to pay for future benefits. State and local pension plans have about $4.4 trillion in assets according to the Federal Reserve, $4.2 trillion less than they need to pay for promised future benefits.

A Growing Problem in Real Estate: Too Many Too Big Houses

Large, high-end homes across the Sunbelt are sitting on the market, enduring deep price cuts to sell, the Wall Street Journal reported. That is a far different picture than 15 years ago, when retirees were rushing to build elaborate, five or six-bedroom houses in warm climates, fueled in part by the easy credit of the real estate boom. Many baby boomers poured millions into these spacious homes, planning to live out their golden years in houses with all the bells and whistles. Now, many boomers are discovering that these large, high-maintenance houses no longer fit their needs as they grow older, but younger people aren’t buying them. Tastes — and access to credit — have shifted dramatically since the early 2000s. These days, buyers of all ages eschew the large, ornate houses built in those years in favor of smaller, more-modern looking alternatives, and prefer walkable areas to living miles from retail.

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BLOG EXCHANGE

New on ABI’s Bankruptcy Blog Exchange: State Regulators Scrutinize Payroll Advance Firms

New York and 10 other states are looking into whether companies in the fast-growing sector are violating payday lending laws, according to a recent blog post.

To read more on this blog and all others on the ABI Blog Exchange, please click here.

 
© 2019 American Bankruptcy Institute
All Rights Reserved.
66 Canal Center Plaza, Suite 600
Alexandria, VA 22314
 

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